An ALJ “must 11 state specifically which symptom testimony is not credible and what facts in the record 12 lead to that conclusion.”
How later courts described this case
- An ALJ “must 11 state specifically which symptom testimony is not credible and what facts in the record 12 lead to that conclusion.”
- “[T]he ALJ was required, at the least, to provide germane reasons 3 for rejecting testimony that corroborates a claimant’s pain testimony.”
- “The ALJ must state specifically which symptom 18 testimony is not credible and what facts in the record lead to that conclusion.”
- [a]n 9 ALJ “must state specifically which symptom testimony is not credible and what facts in 10 the record lead to that conclusion.”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 SOUTHERN DISTRICT OF CALIFORNIA
6
7 Patrick Charles KINSEY, Case No.: 20-cv-00941-BGS
8 Plaintiff,
ORDER:
9 v.
(1) GRANTING PLAINTIFF’S
10 Andrew SAUL,
MOTION FOR SUMMARY
11 Defendant. JUDGMENT [ECF No. 19];
12
(2) DENYING DEFENDANT’S
13 CROSS-MOTION FOR SUMMARY
JUDGMENT [ECF No. 22]; AND
14
15 (3) REMANDING FOR FURTHER
ADMINISTRATIVE PROCEEDINGS
16
17
18 I. INTRODUCTION
19 On May 20, 2020, Plaintiff Patrick Charles Kinsey (“Plaintiff” or “Claimant”),
20 proceeding pro se, filed his Complaint seeking judicial review of the Commissioner of the
21 Social Security Administration’s (“Defendant” or “Commissioner”) denial of his disability
22 insurance benefits under the Social Security Act. (ECF No. 1.)1 On May 29, 2020, this
23 Court issued an order granting Plaintiff’s IFP motion. (ECF No. 4.) Although the
24
25
26 1 The Court cites the electronic CM/ECF pagination for citations.
27
1 Commissioner filed the Administrative Record on November 19, 2020, Plaintiff did not
2 receive the Administrative Record until April 21, 2021. (ECF Nos. 9, 16.) On June 25,
3 2021, Plaintiff filed a Motion for Summary Judgment seeking reversal of the final decision
4 denying benefits and a remand for further administrative proceedings. (ECF No. 19.)
5 Plaintiff argued the Administrative Law Judge (“ALJ”) committed reversible error for
6 failing to properly evaluate Plaintiff’s subjective complaints; improperly discounting
7 Plaintiff’s Mother’s testimony; failing to determine that the Plaintiff was disabled despite
8 finding that the Plaintiff could not perform past relevant work; improperly evaluating
9 Plaintiff’s physical and mental impairments; and erroneously proceeding to Step Five and
10 determined that the Social Security Administration met its burden of proof. (Id. at 6–20.)
11 On August 11, 2021, the Commissioner filed his Cross Motion for Summary Judgment and
12 Opposition to Plaintiff’s Motion. (ECF No. 22.) The Commissioner argued that the ALJ
13 properly evaluated Plaintiff’s subjective complaints; properly discounted Plaintiff’s
14 Mother’s testimony; and substantial evidence supported the ALJ’s findings as to Step Four
15 and Step Five. (Id. at 6–16.) Plaintiff filed a Reply on August 25, 2021. (ECF No. 25.)
16 After careful consideration of the parties’ arguments, the administrative record and
17 the applicable law and for the reasons discussed below, Plaintiff’s Motion for Summary
18 Judgment (ECF No. 19) is GRANTED, the Defendant’s Cross Motion for Summary
19 Judgment (ECF No. 22) is DENIED, and the case is REMANDED for further proceedings
20 consistent with this Order.
21 II. PROCEDURAL HISTORY
22 Plaintiff filed an application for supplemental security income on September 8,
23 2016, with an alleged onset date of January 1, 2008. (ECF No. 9-2 at 16.) Plaintiff’s
24 application was first denied on March 27, 2017, (ECF No. 9-4 at 10–15), and his
25 subsequent request for reconsideration was denied on June 28, 2017, (Id. at 16–22). At
26 Plaintiff’s request, a hearing before an ALJ was held on February 25, 2019 at which
27
1 Plaintiff was represented by counsel and testified, along with Plaintiff’s Mother and a
2 Vocational Expert also providing testimony. (Id. at 23–25 [request for hearing], 44 [notice
3 of hearing]; ECF No. 9-2 at 32–65 [hearing transcript].) On March 6, 2019, the ALJ issued
4 a decision finding that Plaintiff was not disabled and denied Plaintiff’s application for
5 benefits. (ECF No. 9-2 at 16–27.) The Appeals Council denied review on March 31, 2020.
6 (Id. at 2–6.)
7 III. SUMMARY OF FIVE STEPS
8 The ALJ’s decision explains and then goes through each potentially dispositive step
9 of the familiar five-step evaluation process for determining whether an individual has
10 established eligibility for disability benefits.2 (ECF No. 9-2 at 16–27); see Keyser v.
11 Comm’r Soc. Sec. Admin., 648 F.3d 721, 724–25 (9th Cir. 2011); see also 20 C.F.R.
12 § 404.1520.
13 At step one, the ALJ determined that Plaintiff had not “engaged in substantial gainful
14 activity since September 8, 2016, the application date.” (ECF No. 9-2 at 18.) At step two,
15 the ALJ found that Plaintiff had “the following severe impairments: a seizure disorder;
16 laminectomy and fusion of the lumbar spine with subsequent removal of hardware; a
17 history of fractured right shoulder and shoulder dislocation status post open reduction
18 internal fixation (ORIF); trigeminal neuralgia; migraines; and a panic disorder with
19
20
21 2 In order to qualify for disability benefits, an applicant must show that: (1) he or she suffers from a
medically determinable physical or mental impairment that can be expected to result in death, or that has
22
lasted or can be expected to last for a continuous period of not less than twelve months; and (2) the
23 impairment renders the applicant incapable of performing the work that he or she previously performed
or any other substantially gainful employment that exists in the national economy. See 42 U.S.C.
24 §§ 423(d)(1)(A), (2)(A). An applicant must meet both requirements to be “disabled.” Id. The claimant
bears the burden of proving he is disabled. Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 689
25 (9th Cir. 2009). But, at step five, the Commissioner bears the burden of showing the claimant can do other
kinds of work that exist in significant numbers in the national economy “taking into consideration the
26
claimant’s residual functional capacity, age, education, and work experience.” Id.
27
1 agoraphobia [.]” (Id.) At step three the ALJ considered whether the Plaintiff’s
2 impairments “meet or equal” one or more of the specific impairments or combination of
3 impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1, the listings. See 20
4 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. Here, the ALJ found Plaintiff did not meet a
5 listing. (ECF No. 9-2 at 19–21.)
6 If the Plaintiff does not meet a listing, the ALJ “assess[es] and makes a finding about
7 [the Plaintiff’s] residual functional capacity based on all the relevant medical and other
8 evidence in [the Plaintiff’s] case record.” 20 C.F.R. § 404.1520(e). A claimant’s residual
9 functional capacity (“RFC”) is the “maximum degree to which the individual retains the
10 capacity for sustained performance of the physical-mental requirements of jobs.” 20
11 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(c). The RFC is used at the fourth and fifth steps
12 to determine whether the Plaintiff can do his or her past work (step four) or adjust to other
13 available work (step five). Id.
14 Here, the ALJ found the following RFC for Plaintiff:
15 After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform light work
16
as defined in 20 CFR 416.967(b); the claimant can lift and carry 20
17 pounds occasionally, 10 pounds frequently, stand/walk for six hours
in an eight-hour workday and sit for six hours in an eight-hour
18
workday, with postural limitations including occasional climbing
19 stairs/ramps, stooping, bending, kneeling, crouching, and crawling,
but no climbing ladders/ropes/scaffolds, no work on unprotected
20
heights or dangerous machinery and no exposure to vibration with
21 manipulative limitations including occasional lifting above shoulder
level bilaterally and he can perform work activity involving routine,
22
noncomplex tasks with no sustained, intense interaction with
23 supervisors (incidental or brief social conversation is not precluded).
24
(ECF No. 9-2 at 21.)
25
At step four, the ALJ found that Plaintiff could not do his past relevant work as an
26
accounting assistant. (Id. at 25.) At step five, the ALJ considers whether the Plaintiff can
27
1 do other work, considering the Plaintiff’s age, education, work experience, and the
2 limitations in the RFC. 20 C.F.R. § 404.1520(a)(4)(v). If the Plaintiff can do other
3 available work, then the Plaintiff is found not disabled; but if the Plaintiff cannot do any
4 other available work, then the claimant is disabled. See 20 C.F.R. § 404.1520(a)(4)(v),
5 404.1520(g); see also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). Here,
6 the ALJ heard and relied on a vocational expert’s testimony that opined that work existed
7 in significant numbers in the national economy for a person of Plaintiff’s age, education,
8 work experience and with the RFC found by the ALJ. (ECF No. 9-2 at 26–27.)
9 IV. SCOPE OF REVIEW
10 Section 405(g) of the Social Security Act allows unsuccessful claimants to seek
11 judicial review of a final agency decision. 42 U.S.C. § 405(g). This Court has jurisdiction
12 to enter a judgment affirming, modifying, or reversing the Commissioner’s decision. See
13 id.; 20 C.F.R. § 404.900(a)(5). The matter may also be remanded to the Social Security
14 Administration for further proceedings. 42 U.S.C. § 405(g).
15 If the Court determines that the ALJ’s findings are not supported by substantial
16 evidence or are based on legal error, the Court may reject the findings and set aside the
17 decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001).
18 The Court “must consider the entire record as a whole and may not affirm simply by
19 isolating a specific quantum of supporting evidence.” Robbins v. Soc. Sec. Admin., 466
20 F.3d 880, 882 (9th Cir. 2006). The Court may “review only the reasons provided by the
21 ALJ in the disability determination and may not affirm the ALJ on a ground upon which
22 he did not rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). “When evidence
23 reasonably supports either confirming or reversing the ALJ’s decision, we may not
24 substitute our judgment for that of the ALJ.” Batson v. Comm’r of Soc. Sec. Admin., 359
25 F.3d 1190, 1196 (9th Cir. 2004).
26 ///
27
1 V. DISCUSSION
2 Plaintiff argued that the ALJ erred by: (1) failing to properly evaluate Plaintiff’s
3 subjective complaints; (2) improperly discounting Plaintiff’s Mother’s testimony; (3)
4 failing to determine that the Plaintiff was disabled despite finding that the Plaintiff could
5 not perform past relevant work; (4) failing to evaluate Plaintiff’s combined physical and
6 mental impairments; and (5) erroneously proceeding to Step Five and determined that the
7 Social Security Administration met its burden of proof. (ECF No. 19 at 6–20.) The Court
8 will first address whether the ALJ erred in evaluating Plaintiff’s testimony as to the severity
9 of his symptoms.
10 A. Applicable Standard
11 The ALJ must engage “in a two-step analysis to determine whether a claimant’s
12 testimony regarding subjective pain or symptoms is credible.” Garrison, 759 F.3d at 1014
13 (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007)). At the first step,
14 the ALJ must determine whether the claimant has presented objective medical evidence of
15 an underlying impairment which could reasonably be expected to produce the pain or other
16 symptoms alleged.” Id. “Once the claimant produces medical evidence of an underlying
17 impairment, the Commissioner may not discredit the claimant’s testimony as to the severity
18 of symptoms merely because they are unsupported by objective medical evidence.”
19 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citing Bunnell v. Sullivan, 947 F.2d
20 341, 343 (9th Cir. 1991)).
21 If the claimant satisfies the first step and there is no determination of malingering by
22 the ALJ, “the ALJ can reject the claimant’s testimony about the severity of [his] symptoms
23 only by offering specific, clear and convincing reasons for doing so.” See Smith v. Kijakazi,
24 14 F.4th 1108, 2021 WL 4486998, *2 (9th Cir. 2021); Treichler v. Comm’r of Soc. Sec.
25 Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (citing Smolen v. Chater, 80 F.3d 1273, 1281
26 (9th Cir. 1996)); Garrison, 759 F.3d at 1014–15; Parra v. Astrue, 481 F.3d 742, 750 (9th
27
1 Cir. 2007)). This standard is “the most demanding required in Social Security cases.”
2 Smith, 2021 WL 4486998, at *2 (citing Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d
3 920, 924 (9th Cir. 2002)). This court has set forth the specific finding required:
4 [A]n ALJ does not provide specific, clear, and convincing reasons for
rejecting a claimant’s testimony by simply reciting the medical evidence in
5
support of his or her residual functional capacity determination. To ensure that
6 our review of the ALJ’s credibility determination is meaningful, and that the
claimant’s testimony is not rejected arbitrarily, we require the ALJ to specify
7
which testimony she finds not credible, and then provide clear and convincing
8 reasons, supported by evidence in the record, to support that credibility
determination.
9
See Smith, 2021 WL 4486998, at *3; see also Lambert v. Saul, 980 F.3d 1266, 1277 (9th
10
Cir. 2020) (“[T]he ALJ must identify the specific testimony that he discredited and explain
11
the evidence undermining.”); Treichler, 775 F.3d at 1102 (finding that the Ninth Circuit
12
“require[s] the ALJ to ‘specifically identify the testimony from a claimant [the ALJ] finds
13
not to be credible and [. . .] explain what evidence undermines this testimony.”); Parra,
14
481 F.3d at 750 (“The ALJ must provide clear and convincing reasons to reject a claimant’s
15
subjective testimony, by specifically identifying what testimony is not credible and what
16
evidence undermines the claimant’s complaints.”); Thomas v. Barnhart, 278 F.3d 947, 958
17
(9th Cir. 2002); Smolen, 80 F.3d at 1284 (“The ALJ must state specifically which symptom
18
testimony is not credible and what facts in the record lead to that conclusion.”); Lester, 81
19
F.3d at 834 (“[T]he ALJ must identify what testimony is not credible and what evidence
20
the claimant’s complaints.”).
21
The ALJ is “required to point to specific facts in the record” and may use “ordinary
22
techniques of credibility determination.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir.
23
2014) (citing Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir. 2009)); Tommasetti v. Astrue,
24
533 F.3d 1035, 1040 (9th Cir. 2008) (citing Smolen, 80 F.3d at 1284). The ALJ may
25
consider the “inconsistencies either in his testimony or between his testimony and his
26
conduct, his daily activities, his work records, and testimony from physicians and third
27
1 parties concerning the nature, severity and effect of the symptoms of which he complains.”
2 Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997); Thomas, 278 F.3d at 958–59;
3 Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) (quoting Orteza v. Shalala, 50 F.3d
4 748, 749–50 (9th Cir. 1995)). However, if the ALJ’s credibility finding is supported by
5 substantial evidence in the record, we may not engage in second-guessing. See Thomas,
6 278 F.3d at 959 (citing Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir.
7 1999)).
8 B. Analysis
9 As to Step One, the ALJ first determined that the Plaintiff’s medically determinable
10 impairments could reasonably be expected to cause the alleged symptoms. (ECF No. 9-2
11 at 21–23.) Regarding Step Two, the ALJ did not find that Plaintiff was malingering and
12 evaluated the intensity, persistence, and limiting effects of the Plaintiff’s symptoms to
13 determine the extent to which they limit the Plaintiff’s functional limitations. (See id. at
14 23–25.) The issue presented before the Court is whether the ALJ specified what portion
15 of Plaintiff’s testimony and complaints that he found not to be credible, and then provided
16 clear and convincing reasons supported by evidence in the record. See Treichler, 775 F.3d
17 at 1102 (“[T]he ALJ must provide ‘specific, clear and convincing reasons for’ rejecting the
18 claimant’s testimony regarding the severity of the claimant’s symptoms.”).
19 1. Trigeminal Neuralgia3
20 a. Plaintiff’s Testimony
21 Plaintiff testified that he had Trigeminal Neuralgia and explained that “it’s a nerve
22 and I, I have pain. It’s in my forehead, and it goes around here and then into my, my --
23 below my ear.” (ECF No. 9-2 at 51.) Plaintiff described his facial pain as “constant” and
24
25
3 Trigeminal Neuralgia is “an ongoing pain condition that affects certain nerves in your face.” Michael
26
Smith, MD, Trigeminal Neuralgia, WEB MD (Oct. 21, 2021 2:43 PM), https://www.webmd.com/pain-
27 management/guide/trigeminal-neuralgia.
1 “excruciating sharp just painful poke to my whole head. And I that was something to where
2 I had to drop to my knees.” (Id. at 51–52.) As to whether Trigeminal Neuralgia affected
3 his ability to concentrate or focus, Plaintiff responded “[y]es, yes. I can’t, I can’t keep my
4 eyes open. And I, I, I mean, I’m screaming.” (Id. at 52.) Regarding how often he has the
5 pain, Plaintiff stated that “[i]t’s always there in the back of -- but if I have the – I’ve been
6 lucky enough to where I haven’t had the excruciating number two type of it since I’ve been
7 on the Tegretol.” (Id. at 52.) Plaintiff testified as to the effects of his medications that
8 “some days, with the medication I take, just, it, you know, just I start in the morning, it
9 pretty much wipes me out. [. . .] [B]asically, it just makes me really super tired” and also
10 indicated “I always have issues with my sleeping. So, when I take my medication, yeah,
11 I, I’m sleeping for like, a couple hours, many [. . .] hours.” (Id. at 47, 50.)
12 As to his findings regarding Plaintiff’s testimony, the ALJ stated “I have considered
13 the testimony by the [Plaintiff] at the hearing in this matter, that the [Plaintiff] [. . .]
14 experiences [. . .] trigeminal neuralgia[.] However, the objective medical evidence is
15 inconsistent with [his] testimony in that the physical examinations of record reveal
16 primarily benign findings and there is no history of therapy treatment or individual
17 counseling over an extended period of time.” (Id. at 24.)
18 Other than his statement that “the objective medical evidence is inconsistent with
19 [Plaintiff’s] testimony in that the physical examinations of record reveal primarily benign
20 findings and there is no history of therapy treatment or individual counseling over an
21 extended period of time,” the ALJ did not address Plaintiff’s testimony. The ALJ’s
22 decision lacked any mention of Plaintiff’s specific testimony about the intensity,
23 persistence, and limiting effects of his Trigeminal Neurologia. The ALJ failed to
24 specifically identify any part of Plaintiff’s testimony that he determined was not credible
25 and neglected to provide any specific reasons, let alone clear and convincing reasons
26 supported by the record, for discounting Plaintiff’s testimony, which has prevented the
27
1 Court from conducting a meaningful judicial review. See Leon v. Berryhill, 880 F.3d 1041,
2 1046 (9th Cir. 2017) (“[T]he ALJ was required, at the least, to provide germane reasons
3 for rejecting testimony that corroborates a claimant’s pain testimony.”); Parra, 481 F.3d
4 at 750 (“The ALJ must provide clear and convincing reasons to reject a claimant’s
5 subjective testimony, by specifically identifying what testimony is not credible and what
6 evidence undermines the claimant’s complaints.”); Reddick, 157 F.3d at 722 (“General
7 findings are insufficient; rather, the ALJ must identify what testimony is not credible and
8 what evidence undermines the claimant’s complaints.”); Smolen, 80 F.3d at 1284 ( [a]n
9 ALJ “must state specifically which symptom testimony is not credible and what facts in
10 the record lead to that conclusion.”). And the ALJ cannot expect the courts to “comb the
11 administrative record to find specific conflicts.” Brown-Hunter v. Colvin, 806 F.3d 487,
12 494 (9th Cir. 2015); see also Reddick, 157 F.3d at 722 (“General findings are insufficient;
13 rather, the ALJ must identify what testimony is not credible and what evidence undermines
14 the claimant’s complaints.”).
15 The ALJ’s decision only provided a general and conclusory statement, and failed to
16 provide any analysis to connect his conclusion to any evidence in the record. The ALJ
17 failed to specifically identify what testimony that he found was not credible and failed to
18 identify what evidence undermined the Plaintiff’s complaints. See Lester, 81 F.3d at 834.
19 When the ALJ fails to specify what part of Plaintiff’s testimony he rejected and fails to
20 demonstrate how the evidence provides clear and convincing reasons its rejection, the court
21 cannot proceed without substituting its own conclusions for the ALJ’s and cannot
22 determine whether the substantial evidence supported the ALJ’s decision. See Brown-
23 Hunter, 806 F.3d at 494 (“Because the ALJ failed to identify the testimony she found not
24 credible, she did not link that testimony to the particular parts of the record supporting her
25 non-credibility determination. This was legal error.”); Rosel A. v. Saul, No. 20CV1098-
26 MSB, 2021 WL 2588156, at *4 (S.D. Cal. June 2021) (citing Treichler, 775 F.3d at 1103).
27
1 Therefore, the Court concludes that the ALJ erred by rejecting Plaintiff’s testimony
2 as to his Trigeminal Neurologia and prevented the Court from being able to determine
3 whether the ALJ’s decision is supported by substantial evidence.
4 b. Plaintiff’s Complaints in Medical Record
5 As for Plaintiff’s complaints in the medical records regarding Trigeminal
6 Neurologia, the ALJ stated that the “record shows that the [Plaintiff] complained that his
7 conditions have worsened and he reported that he continues to experience pain in his face.”
8 (ECF No. 9-2 at 23.) The ALJ found that Plaintiff’s complaints were not supported by the
9 objective medical evidence. (Id.) To support his finding, the ALJ first noted that changing
10 “from Lamictal to Tegretol [. . .] resulted in [Plaintiff] reporting improvement in his face
11 pain.” (Id.) Then later in the decision, the ALJ generally cited to the Kaiser Permanente
12 records where he stated that “after [the Plaintiff] was placed on Tegretol, he has not had
13 facial pain or seizure episodes despite the fact that he is not fully compliant with
14 medications and follow up visits.” (Id.) The ALJ also noted that “there [was] no evidence
15 of trigeminal neuralgia alleged or noted” in Dr. Kanner’s report. (Id. at 23–24.)
16 The Court finds that the record as a whole does not support the ALJ’s basis for
17 discrediting Plaintiff’s complaints in the medical records regarding his Trigeminal
18 Neuralgia. On February 3, 2016, Dr. Edelstein noted that Plaintiff complained of pain in
19 his head radiating to his jaw and neck. (ECF No. 9-7 at 14.) Dr. Edelstein recapped
20 Plaintiff’s history and stated Plaintiff was brought to the emergency due to facial pain,
21 where he had intermittent severe sharp pain in the right temporal region, as well as near his
22 right ear/neck and jaw region. (Id.) Plaintiff indicated that this pain can last for seconds
23 or minutes, and is a 10 out of 10 in pain when it happens. (Id.) The ED Emergency Notes,
24 also dated February 3, 2016, assessed and diagnosed that Plaintiff suffered from right
25 Trigeminal Neuralgia. (Id. at 16, 63, 65, 66.) A March 8, 2016 Telephone Encounter
26 indicated that Plaintiff was in the ER due to facial paralysis. (Id. at 12.)
27
1 On March 2, 2017, Dr. Spier assessed and diagnosed Plaintiff with Trigeminal
2 Neuralgia. (ECF No. 9-7 at 110, 123.) Dr. Tribble’s March 8, 2017 Complete Mental
3 Evaluation noted that Plaintiff remained in chronic pain and that he had a history of facial
4 pain. (Id. at 144.) Dr. Tribble noted under Axis III that Plaintiff suffered from Trigeminal
5 Neuralgia. (Id. at 144.) On April 24, 2018, Dr. Spier noted in the “assessment” section
6 that Plaintiff suffered from right Trigeminal Neuralgia. (ECF No. 9-8 at 52.) Dr. Konor’s
7 April 24, 2018 Progress Notes indicated that they are monitoring Plaintiff’s Tegretol levels
8 and that Plaintiff has a history of Trigeminal Neuralgia. (Id. at 69.)
9 The ALJ focused solely on Dr. Kanner’s report wherein the ALJ found that there
10 was no evidence of Trigeminal Neuralgia alleged or noted in Dr. Kanner’s report.
11 However, he failed to acknowledge this other contradictory evidence as stated above nor
12 why this contradictory evidence did not affect his decision. See Robbins, 466 F.3d at 882
13 (“However, a reviewing court must consider the entire record as a whole and may not
14 affirm simply by isolating a ‘specific quantum of supporting evidence.’”).
15 In regard to Plaintiff changing his medication to Tegretol partly to treat his
16 Trigeminal Neuralgia, the ALJ found that this change “resulted in [Plaintiff] reporting
17 improvement in his face pain.” (ECF No. 9-2 at 23.) Then the ALJ generally cited to the
18 Kaiser Permanente records and stated that Plaintiff had no facial pain after being placed on
19 Tegretol, despite not being fully compliant with his medications. (Id.) However, other
20 medical records show that Plaintiff’s Trigeminal Neuralgia was never eliminated through
21 his use of Tegretol.
22 Dr. Spier’s March 15, 2016 Notes stated that Plaintiff was seen in the ER for facial
23 pain and currently taking 200 mg of Tegretol. (ECF No. 9-7 at 10–12.) Then on July 6,
24 2016, Dr. Spier noted that Plaintiff changed to Tegretol to help with facial pain after having
25 been seen in the ER for pain and noted that Plaintiff’s pain is subsiding. (Id. at 4–6.) On
26
27
1 March 2, 2017, Dr. Spier assessed and diagnosed Plaintiff with Trigeminal Neuralgia.
2 (ECF No. 9-7 at 110, 123.)
3 Dr. Tribble’s March 8, 2017 Complete Mental Evaluation noted that Plaintiff
4 remained in chronic pain and that he had a history of facial pain. (Id. at 144.) A May 3,
5 2017 Disability Report Appeal noted that Plaintiff complained of a change as to his
6 physical or mental conditions since his last visit and noted that his conditions have
7 worsened, with him still having a lot of pain in his face. (ECF No. 9-6 at 16.) The August
8 17, 2017 Disability Report Appeal stated that every day Plaintiff had constant pain in his
9 face, while each episode lasting between three to thirty days. (Id. at 24.) Nursing Notes
10 dated October 10, 2017 indicated that Tegretol helped Plaintiff’s facial pain. (ECF No. 9-
11 8 at 35.)
12 These records support that Tegretol had only ameliorated Plaintiff’s pain from
13 Trigeminal Neuralgia and did not indicate that this actually stopped Plaintiff’s pain
14 altogether. The ALJ never explained or resolved this conflict in his decision. Thus, the
15 Court concludes that the ALJ erred in rejecting Plaintiff’s complaints in the medical record
16 regarding Trigeminal Neuralgia for failing to address the entire medical record as a whole
17 and for failing to provide clear and convincing reasons supported by substantial evidence.
18 2. Difficulty Concentrating
19 a. Plaintiff’s Testimony
20 In regards to difficulty concentrating, Plaintiff testified that although he tried going
21 back to work, he had to stop after six months because he “just had issues with keeping on
22 task[.]” (ECF No. 9-2 at 43.) As to what prevented him from returning to working,
23 Plaintiff indicated that “being around people is frustrating. I just have – I’m just nothing
24 that I used to be. I don’t even I can’t, I can’t explain it, it’s just something where I, I just
25 get totally overwhelmed.” (Id. at 48.) And when he gets overwhelmed, Plaintiff claimed
26 that “I start to shake, I start to sweat and I, I, you know what? I just feel like I -- just
27
1 laying[.]” (Id. at 50.) Regarding whether the facial pain affected his ability to concentrate
2 or focus, Plaintiff testified “[y]es, yes. I can’t, I can’t keep my eyes open. And I, I, I mean,
3 I’m screaming.” (Id. at 52.) Plaintiff testified that he was taking Lexapro and Hydroxyzine
4 for his anxiety at the time of the hearing. (Id. at 46, 47.)
5 As to his findings regarding Plaintiff’s testimony, the ALJ stated “I have considered
6 the testimony by the [Plaintiff] at the hearing in this matter, that the [Plaintiff] has difficulty
7 concentrating[.] However, the objective medical evidence is inconsistent with [his]
8 testimony in that the physical examinations of record reveal primarily benign findings and
9 there is no history of therapy treatment or individual counseling over an extended period
10 of time.” (Id. at 24.)
11 First, the ALJ did not cite to any objective evidence in the record to support his
12 finding. The ALJ cannot expect the Court to “comb the administrative record to find
13 specific conflicts” to support his decision. See Brown-Hunter, 806 F.3d at 494. Further,
14 the ALJ failed to specify what part of Plaintiff’s testimony he rejected, thereby failing to
15 provide clear and convincing reasons for its rejection. See Parra, 481 F.3d at 750 (“The
16 ALJ must provide clear and convincing reasons to reject a claimant’s subjective testimony,
17 by specifically identifying what testimony is not credible and what evidence undermines
18 the claimant’s complaints.”). The Court cannot proceed without substituting its own
19 conclusions for the ALJ’s and cannot determine whether substantial evidence supported
20 the ALJ’s decision. See Brown-Hunter, 806 F.3d at 494 (“Because the ALJ failed to
21 identify the testimony she found not credible, she did not link that testimony to the
22 particular parts of the record supporting her non-credibility determination. This was legal
23 error.”); Rosel A. v. Saul, 2021 WL 2588156, at *4 (citing Treichler, 775 F.3d at 1103).
24 Accordingly, the Court concludes that the ALJ erred by rejecting Plaintiff’s
25 testimony as to his difficulty concentrating.
26 ///
27
1 b. Plaintiff’s Complaints in Medical Record
2 As regards to Plaintiff’s complaints in the medical record, the ALJ stated:
3 The record shows that the claimant complained that his conditions have
worsened, and he reported that he continues to experience pain in his face. He
4
reported episodes of migraines at least two times a week lasting at least one
5 or two days. He stated that his back pain is constant and radiates down both
legs. He stated that he is having petit mal seizures two to three times a month
6
as well as two grand mal seizures every two months. The claimant also alleged
7 that he continues to struggle with anxiety, and he reported having around two
to three panic attacks a month.
8
(ECF No. 9-2 at 23.) The ALJ made no reference to Plaintiff’s complaints regarding his
9
ability to concentrate. (See id. at 23–24.)
10
Notwithstanding, the ALJ did note that during Dr. Tribble’s psychological
11
evaluation the Plaintiff complained that it was “difficult to stay focused and on task.
12
[Plaintiff] has also alleged that his ability to perform crucial routine, daily tasks has been
13
affected due to his seizures, chronic back pain due to surgeries and shoulder pain due to
14
surgeries[.]” (Id. at 23.) In response to these complaints made by Plaintiff, the ALJ stated
15
that the March 2017 records show that “the [Plaintiff] was able to leave the house, take a
16
bus independently, and walk-through streets to his appointment for which he was on time.
17
Records show that mental status examination was essentially benign with normal thought
18
processes and speech as well as intact concentration and calculation.” (Id.) The ALJ then
19
indicated that:
20
Dr. Tribble found that the claimant remains functional in routine activities of
21
daily living. Dr. Tribble noted that the claimant maintains self-care
22 independently including dressing, bathing and personal hygiene. He can
utilize public transportation independently, and he took the bus to this
23
evaluation. On a daily basis, he helps take care of his mother, walks the dog
24 and cooks. He can go out alone, pay bills and handle cash appropriately. He
engages in routine household tasks such as running errands, shopping and
25
cooking.
26
27
1 (Id. at 24.) The ALJ may consider “whether the claimant engages in daily activities
2 inconsistent with alleged symptoms” to contradict Plaintiff’s complaints. Lingenfelter, 504
3 F.3d at 1040. Nevertheless, daily activities may only be grounds for discrediting a
4 claimant’s testimony when a claimant “is able to spend a substantial part of his day engaged
5 in pursuits involving the performance of physical functions that are transferable to a work
6 setting.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). The ALJ failed to address how
7 the cited daily activities are transferable to Plaintiff being able to spend a substantial part
8 of the day engaged in performing the physical functions in a work setting. The routine
9 daily activities listed by Dr. Tribble do not correlate to Plaintiff’s ability to concentrate for
10 a substantial part of the day and do not involve lengthy concentration.
11 The ALJ also noted that the “[r]ecords show that [Plaintiff’s] mental status
12 examination was essentially benign with normal thought processes and speech as well as
13 intact concentration and calculation.” (ECF No. 9-2 at 23.) However, Dr. Tribble reported
14 on the March 8, 2017 mental evaluation4 that Plaintiff found it hard to stay focused and on
15 task, and indicated that Plaintiff was unable to focus during the interview and had difficulty
16 making decisions.5 (ECF No. 9-7 at 140, 141.) Further, Dr. Tribble’s diagnostic
17
18
19
4 The ALJ cited to B7F in referring to Dr. Tribble’s psychological exam. (ECF No. 9-2 at 23.) However,
B7F is Dr. Kanner’s Complete Internal Medicine Evaluation and does not discuss Plaintiff’s psychological
20 evaluation. (ECF No. 9-7 at 124–36.) Dr. Tribble’s psychological evaluation is actually B8F. (Id. at
137–46.)
21
5 The only parts of Dr. Tribble’s Mental Evaluation wherein he specifically assessed Plaintiff’s
22
concentration was in the “Concentration and Calculation” section and Dr. Tribble’s Functional
23 Assessment. (ECF No. 9-7 at 143.) Dr. Tribble’s “Concentration and Calculation” section indicated:
24 The claimant was able to perform serial 7’s. The claimant said that 80 cents would be
received from a dollar if two oranges were bought at 10 cents each. The claimant gave the
25 following answers when asked to do the following simple calculations: 2 + 3 = 5, 5 x 3 =
15, and 9 - 3 = 6. The claimant did not use finger counting when doing simple calculations.
26
The claimant could spell “world” forwards. The claimant could spell “world” backwards.
27 The claimant was able to complete this portion of the examination well.
1 impression found that Plaintiff suffered from a panic disorder with Agoraphobia and
2 Generalized Anxiety Disorder under AXIS I. (Id. at 144.) The ALJ also found that Plaintiff
3 suffered from seizures, migraines, Trigeminal Neuralgia, and chronic pain with history of
4 spine surgery under AXIS III. (Id.) The ALJ’s analysis did not address these other illnesses
5 in his decision nor did the ALJ determine whether any or all of Plaintiff’s diagnosed
6 illnesses combined could affect Plaintiff’s ability to concentrate. See Robbins, 466 F.3d at
7 882 (“However, a reviewing court must consider the entire record as a whole and may not
8 affirm simply by isolating a ‘specific quantum of supporting evidence.’”).
9 Additionally, Dr. Tribble indicated that Plaintiff’s mood “presented as anxious with
10 affect that was mood congruent” and found that Plaintiff had moderate impairment as to
11 his ability to maintain concentration, attention persistence and pace. (ECF No. 9-7 at 143–
12 45.) Dr. Tribble went on to find that Plaintiff “experiences recurrent, unexpected panic
13 attacks and has excessive worry about a number of concerns with anxiety that has been
14 difficult to manage.” (Id. at 144.) The ALJ ignored these sections of Dr. Tribble’s
15 evaluation that give more credence to Plaintiff’s statements and supports Plaintiff’s
16 complaints that he had difficulty staying focused and on task.6
17 In sum, the ALJ failed to acknowledge any of the evidence cited herein as to
18 Plaintiff’s inability to concentrate nor why this evidence did not affect his decision.
19 Accordingly, the Court concludes that the ALJ erred in rejecting Plaintiff’s complaints in
20
21
22
(Id.) However, the “Concentration and Calculation” section only evaluated whether Plaintiff could
23 perform these listed mathematical calculations and the Functional Assessment indicated that the Plaintiff
actually had a moderate impairment regarding his ability to maintain concentration, attention, persistence,
24 and pace. (Id.)
25 6 On May 3, 2017, Plaintiff complained in the Disability Report Appeal that he was unable to fully sleep
and lacks concentration. (ECF No. 9-6 at 20.) Plaintiff indicated that there had been a change in his daily
26
activities due to his physical or mental conditions, which he noted that he was unable to concentrate and
27 is not able to finish a task from start to finish, while getting overwhelmed easily. (Id. at 20, 21.)
1 the medical record as to his difficulty concentrating. The ALJ failed to address the entire
2 medical record as a whole and did not provide to provide clear and convincing reasons
3 supported by substantial evidence.
4 3. Migraines
5 a. Plaintiff’s Testimony
6 At the hearing, Plaintiff testified that he suffers from migraines 10-12 times monthly.
7 (ECF No. 9-2 at 48). He is currently taking Imitrex for his migraines. (ECF No. 9-2 at 49)
8 As for how long his migraines can last, Plaintiff stated that “they could last up to two, three
9 days, three days if, if I don’t get the Imitrex in time.” (Id.) Even after taking Imitrex on
10 time, Plaintiff stated that his migraines can last for an hour and he still “[has] to lie – [he
11 has] to close [his] eyes, keep [his] eyes shut and lay down flat. Like, [he] can’t getting
12 really like, dizzy, sick to my stomach.” (Id. at 49–50.)
13 The ALJ found that he had “considered the testimony by the [Plaintiff ] at the hearing
14 in this matter, that the [Plaintiff] [. . .] experiences [. . .] migraines[.] However, the objective
15 medical evidence is inconsistent with [his] testimony in that the physical examinations of
16 record reveal primarily benign findings and there is no history of therapy treatment or
17 individual counseling over an extended period of time.” (Id. at 24.)
18 The ALJ did not cite to any medical records to support this conclusion. The ALJ
19 did not explain how benign findings from physical examinations correlate to Plaintiff’s
20 testimony regarding migraines. Nor did the ALJ explain how therapy treatment or
21 individual counselling somehow resolve Plaintiff’s severe migraines.
22 In addition, the ALJ did not address Plaintiff’s testimony about the intensity,
23 persistence, and limiting effects of his migraines, especially as it regards to Plaintiff’s
24 testimony that he suffers from migraines 10–12 times a month. The ALJ also did not
25 address Plaintiff’s testimony regarding the side effects of Imitrex. In fact, the ALJ failed
26 to specifically identify any part of Plaintiff’s testimony that he determined was not credible,
27
1 which prevents the Court from conducting a meaningful judicial review. See Smolen, 80
2 F.3d at 1284 ( [a]n ALJ “must state specifically which symptom testimony is not credible
3 and what facts in the record lead to that conclusion.”). Courts are not expected to “comb
4 the administrative record to find specific conflicts” to support the ALJ’s position. See
5 Brown-Hunter, 806 F.3d at 494.
6 The ALJ’s decision lacked analysis and only provided conclusory findings. The
7 ALJ failed to specifically identify what testimony was not credible and what evidence
8 undermined the Plaintiff’s complaints. Lester, 81 F.3d at 834. “And when an ALJ fails to
9 specify the rejected testimony and how the evidence provides clear and convincing reasons
10 to reject it, the reviewing court cannot proceed without ‘substitut[ing its own] conclusions
11 for the ALJs, or speculat[ing] as to the grounds for the ALJ’s decision’” and “the reviewing
12 court cannot determine whether the substantial evidence supported the ALJ’s decision.”
13 See Brown-Hunter, 806 F.3d at 494 (“Because the ALJ failed to identify the testimony she
14 found not credible, she did not link that testimony to the particular parts of the record
15 supporting her non-credibility determination. This was legal error.”).
16 Therefore, the Court concludes that the ALJ erred in rejecting Plaintiff’s testimony
17 regarding his migraines.
18 b. Plaintiff’s Complaints in Medical Record
19 As for Plaintiff’s complaints in his medical records regarding his migraines, the ALJ
20 stated that the “record shows that the claimant complained that his conditions have
21 worsened and he [. . .] reported episodes of migraines at least two times a week lasting at
22 least one or two days.” (ECF No. 9-2 at 23.) The ALJ then made a general statement that
23 these allegations are not supported by objective medical evidence. (Id.)
24 Despite acknowledging these complaints, the ALJ did not address them in any
25 analysis. The ALJ failed to point to any objective medical evidence to support his
26 conclusion. The ALJ may not discredit Plaintiff’s complaints simply because they are
27
1 unsupported by objective medical evidence. See Reddick, 157 F.3d at 722 (“[T]he
2 Commissioner may not discredit the claimant’s testimony as to the severity of symptoms
3 merely because they are unsupported by objective medical evidence.”) (citing Bunnell, 947
4 F.2d at 343).
5 However, even looking at the record as a whole, the Court finds that the ALJ’s basis
6 for discrediting Plaintiff’s complaints in the medical records regarding his migraines is not
7 supported by substantial evidence. For example, on February 11, 2015, Dr. Spier noted
8 that Plaintiff was having migraines once per week, which was one of his main diagnoses
9 for that visit and was told to treat his migraines early and use Imitrex. (ECF No. 9-7 at 19–
10 21.) The emergency room doctor’s October 8, 2015 discharge notes listed migraines as
11 one of Plaintiff’s active problems. (Id. at 23, 26, 58, 63.) On November 24, 2015, Plaintiff
12 urgently requested an appointment after having multiple seizures and headaches since his
13 last visit and Dr. Spier assessed that Plaintiff was suffering from migraines. (Id. at 17.) In
14 Plaintiff’s active problems list from between October 7, 2015 to July 6, 2016, it states that
15 Plaintiff suffered from migraines. (Id. at 3, 58.)
16 On February 3, 2016, the emergency department notes stated that Plaintiff’s chief
17 complaint was his headache that had lasted for about three days and was worsening. (Id. at
18 14, 63.) Plaintiff’s active problems also listed migraines. (Id.) Regarding the September
19 17, 2016 Disability Report, the remarks stated that Plaintiff “suffer[ed] from migraines and
20 dizzy spells with migraines lasting for almost 3 days. Feels nauseous and has blurry vision.
21 Will be out of it for 1–2 hours after having seizures.” (ECF No. 9-6 at 12.) On March 2,
22 2017, Dr. Spier’s initial assessment noted that Plaintiff had migraines. (ECF No. 9-7 at
23 110, 123.) In the May 3, 2017 Disability Report Appeal, Plaintiff indicated that his
24 migraines were worsening and had them at least two times a week, lasting for at least one
25 or two days. (ECF No. 9-6 at 16.)
26
27
1 On March 6, 2017, Dr. Kanner noted that Plaintiff had migraines that occured
2 approximately four times a month and can last up to two or three days. (ECF No. 9-7 at
3 127.) In fact, Dr. Kanner noted that one Plaintiff’s chief complaints was his migraine
4 headaches. (Id. at 126.) Dr. Kanner wrote that Plaintiff’s migraines were formally
5 diagnosed in 2014 and Plaintiff was being treated with Imitrex for his migraines. (Id. at
6 127, 128.) In his exam on March 8, 2017, Dr. Tribble’s diagnostic findings listed migraines
7 under Axis III and acknowledged that Plaintiff had a history of migraines. (Id. at 144.)
8 The August 17, 2017 Disability Report indicated that Plaintiff complained that his medical
9 conditions had changed for the worse, that his conditions have not improved, and that he
10 had more migraines. (ECF No. 9-6 at 24.) The report stated that Plaintiff had migraines
11 three times a week, lasting up to two days. (Id. at 24.) Further, in indicating what has
12 changed in his daily activities due to his physical or mental conditions since his last visit,
13 Plaintiff stated that it is typical to get a migraine after coming home from the pain clinic
14 and that he will then try to sleep it off. (Id. at 29.)
15 In the October 10, 2017 Nursing Notes, it was noted that Plaintiff had migraines
16 once per week. (ECF No. 9-8 at 36.) The April 24, 2018 Nursing Notes listed migraines
17 as part of the reason for his visit and assessed that Plaintiff in fact suffered from migraines.
18 (Id. at 52.) In the November 26, 2018 Progress Notes, Dr. Spier noted that Plaintiff
19 complained of his migraines worsening if unable to sleep well and provided Plaintiff with
20 instructions on how to try to reduce severity of migraines. (Id. at 106, 110, 111.) In fact,
21 a May 3, 2017 Disability report indicated that Plaintiff was only taking two medications
22 for migraines, Sumatriptan and Reglan. (ECF No. 9-6 at 19.) However, on February 12,
23 2019, Plaintiff’s list of medications for his migraines listed three medications for treating
24 migraines, Imetrex, Reglan, and Nortriptyline. (Id.at 45.) One can infer from this that
25 Plaintiff’s migraines may not have been improving, based on the increased medication used
26 to treat his migraines.
27
1 The ALJ’s decision failed to acknowledge Plaintiff’s complaints in the medical
2 records of his migraines. He did not consider Plaintiff’s overall medical records that had
3 documented Plaintiff’s complaints as to his migraines and that the Plaintiff had been treated
4 for his migraines throughout his time leading up to and after the filing of his supplemental
5 security income application.
6 Therefore, the Court concludes that the ALJ also erred in rejecting Plaintiff’s
7 complaints in medical record without specifically addressing Plaintiff’s complaints
8 regarding his migraines and why they were unsupported by the record, as well as failing to
9 provide clear and convincing reasons for such rejection, making the Court unable to
10 determine whether the ALJ’s decision was supported by substantial evidence.
11 4. Chronic Back Pain
12 a. Plaintiff’s Testimony
13 Plaintiff testified that the car accident was the reason why he hurt his back and
14 described his surgeries following the accident as “a laminectomy, and a discectomy, and a
15 fusion with hardware.” (ECF No. 9-2 at 39–40.) Plaintiff indicated that his back
16 “obviously wasn’t going to -- there was no 100 percent. [The doctor] said, if I can get
17 you back to about 75 percent -- and then, your pain levels, if I can get your pain levels
18 about half[.]” (Id. at 41.) In addressing the ALJ’s question on whether he could find
19 another job that was not too stressful, Plaintiff stated that the reason why he couldn’t go
20 back to sport and commercial fishing was his back. (Id. at 43.) Plaintiff testified “[i]t was,
21 it was, it was everything. It was -- there was no more. I couldn’t, you know, tug on -- you
22 know, the fishing part, I was already past catching fish, you know, more helping out the
23 customers. But I couldn’t, you know, pulling -- getting the anchor stuck or such. I mean,
24 there was, there was a lot of things that I couldn’t, I couldn’t even do. I couldn’t, I couldn’t
25 even drag a, a big tuna fish across the deck, I mean, to help the guys fillet it[.]” (Id.)
26 ///
27
1 As to his findings regarding Plaintiff’s testimony, the ALJ stated “I have considered
2 the testimony by the [Plaintiff . . .] at the hearing in this matter, that the [Plaintiff] [. . .]
3 experiences [. . .] chronic back pain. However, the objective medical evidence is
4 inconsistent with [his] testimony in that the physical examinations of record reveal
5 primarily benign findings and there is no history of therapy treatment or individual
6 counseling over an extended period of time.” (Id. at 24.)
7 The ALJ did not address Plaintiff’s testimony about the intensity, persistence, and
8 limiting effects of his chronic back pain. In fact, the ALJ failed to specifically identify any
9 part of Plaintiff’s testimony that he determined was not credible, thus preventing the Court
10 from conducting a meaningful judicial review. See Smolen, 80 F.3d at 1284 (An ALJ “must
11 state specifically which symptom testimony is not credible and what facts in the record
12 lead to that conclusion.”).
13 The only statement that the ALJ provided in support of his decision to reject the
14 Plaintiff’s testimony was when he stated that “the objective medical evidence is
15 inconsistent with [Plaintiff’s] testimony in that the physical examinations of record reveal
16 primarily benign findings and there is no history of therapy treatment or individual
17 counseling over an extended period of time.” (ECF No. 9-2 at 24.) Apart from this general
18 statement, the ALJ failed to provide any specific reasons, supported by evidence in the
19 record, for discrediting Plaintiff’s testimony. See Reddick, 157 F.3d at 722 (“General
20 findings are insufficient; rather, the ALJ must identify what testimony is not credible and
21 what evidence undermines the claimant’s complaints.”).
22 The ALJ’s conclusory statement failed to specifically identify what testimony was
23 not credible and what evidence undermined the Plaintiff’s testimony. And the Court is not
24 expected to “comb the administrative record to find specific conflicts.” Brown-Hunter,
25 806 F.3d at 494.
26 ///
27
1 Therefore, the Court concludes that the ALJ erred in rejecting Plaintiff’s testimony
2 regarding his chronic back pain without specifically addressing which of Plaintiff’s
3 complaints were inconsistent with the record and failing to provide clear and convincing
4 reasons supported by substantial evidence for rejecting his testimony.
5 b. Plaintiff’s Complaints in Medical Record
6 As for Plaintiff’s complaints in medical record regarding chronic back pain, the ALJ
7 stated that the “record shows that the claimant complained that his conditions have
8 worsened and he [. . .] stated that his back pain is constant and radiates down both legs.”
9 (ECF No. 9-2 at 23.) The ALJ stated that this allegation was simply not supported by the
10 objective medical evidence of the record. (Id.) The ALJ acknowledged that during his
11 visit to Dr. Tribble for psychological evaluation, Plaintiff reported that “[h]e has also
12 alleged that his ability to perform crucial routine, daily tasks has been affected due to his
13 [. . .] chronic back pain due to surgeries[.]” (Id.)
14 Although the ALJ acknowledged that the Plaintiff had complained of having chronic
15 back pain and indicated that his allegations were not supported by the record, even referring
16 to a specific complaint made to Dr. Tribble, the ALJ failed to cite any other evidence to
17 support his conclusion that Plaintiff’s allegations of chronic back pain was not supported
18 by the objective medical evidence. (See id. at 23–24.) Additionally, the ALJ may not
19 discredit the Plaintiff’s complaints solely because they are unsupported by objective
20 medical evidence. See Reddick, 157 F.3d at 722 (“Once the claimant produces medical
21 evidence of an underlying impairment, the Commissioner may not discredit the claimant’s
22 testimony as to the severity of symptoms merely because they are unsupported by objective
23 medical evidence.”) (citing Bunnell, 947 F.2d at 343).
24 Notwithstanding, looking at the entire record as a whole, the Court finds that the
25 ALJ’s basis for discrediting Plaintiff’s complaints are not supported by substantial
26 evidence. For instance, Plaintiff’s list of active problems between October 7, 2015 to July
27
1 6, 2016 stated that Plaintiff suffered from chronic pain. (ECF No. 9-7 at 3.) The emergency
2 room doctor’s October 8, 2015 discharge notes indicated that Plaintiff had a past medical
3 history of chronic lower back pain and also listed chronic pain under Plaintiff’s active
4 problem list. (Id. at 23, 26, 58, 63.)
5 Additionally, in the February 3, 2016 emergency department notes, Dr. Edelstein
6 noted that Plaintiff had chronic lower back pain in his past medical history. (Id. at 14.) On
7 March 6, 2017, Dr. Kanner noted in her Complete Internal Medicine Evaluation that
8 Plaintiff had a lower back injury with three surgeries and that his back pain has worsened
9 with lifting or turning, while having discomfort in walking after one block and unable to
10 run without pain. (Id. at 127.) Dr. Kanner noted that one of Plaintiff’s chief complaints
11 was his lower back. (Id. at 126.) On March 8, 2017, Dr. Tribble noted in the “Current
12 Reported Limitations” section of his Complete Mental Evaluation that Plaintiff’s “ability
13 to perform crucial day to day tasks has been affected due to his [. . .] chronic back pain due
14 to surgeries[.]” (Id. at 140.) Further, Dr. Tribble noted in Plaintiff’s medical history that
15 the Plaintiff had reported “experiencing pain in his lower spine, right shoulder, left rib cage
16 and sternum pain.” (Id.)
17 Further, the Disability Determination Explanation’s “Findings of Fact and Analysis
18 of Evidence” section listed back and neck pain in the analysis of the Plaintiff’s listed severe
19 impairments. (ECF No. 9-3 at 26.) In March 2017, Plaintiff indicated that his condition
20 had worsened and that his pain was constant, with the pain radiating down both legs. (Id.
21 at 38.) In the May 3, 2017 Disability Report Appeal, Plaintiff indicated that he was unable
22 to walk more than one block without having severe pain in his back and that he is not able
23 to sit longer than thirty minutes because he will start feeling severe lower back pain. (ECF
24 No. 9-6 at 20.) The August 17, 2017 Disability Report Appeal stated under “activities”
25 that among other things, “[h]e cannot do much house hold chores because of the pain in
26 his legs and back.” (Id. at 29.) Plaintiff noted that his conditions have not improved and
27
1 even when he rests he feels uncomfortable vibration in his lower back. (Id. at 24.) Plaintiff
2 had indicated that there had been changes as to his physical or mental conditions since the
3 last time he discussed his medical conditions, while noting that his back pain is constant
4 and the pain radiates down to his legs. (Id. at 16.)
5 Although the ALJ’s decision acknowledged that Plaintiff suffered from chronic back
6 pain, the ALJ failed to provide any reasons to support his conclusion that the Plaintiff’s
7 allegation of chronic back pain was not supported by the objective medical evidence. The
8 ALJ also failed to address why this contradictory evidence did not affect his decision and
9 ignored the fact that the Plaintiff had continuously been treated for his chronic back pain.
10 The ALJ did not refer to any specific part of the medical record that refuted Plaintiff’s
11 complaints and the Court is not expected to “comb the administrative record to find specific
12 conflicts.” See Brown-Hunter, 806 F.3d at 494.
13 The Court concludes that the ALJ erred in rejecting Plaintiff’s complaints without
14 specifically addressing why Plaintiff’s chronic back pain complaints were not supported
15 by the record. The ALJ therefore failed to provide clear and convincing reasons for such
16 rejection.
17 5. Tremors and Shaking
18 a. Plaintiff’s Testimony
19 In response to the ALJ’s question regarding notes in his medical records regarding
20 tremors, Plaintiff testified “I’ve always had the shaking in my hand, and [. . .] it, it can get
21 pretty bad. But it’s constantly there now. It’s – I they think maybe I – I’ve taken like, lab
22 work. They tried to see if maybe it was my thyroid, something or something[.]” (ECF No.
23 9-2 at 52–53.) As to the ALJ’s question as to whether it affected his ability to use his hands
24 or write, Plaintiff stated “[y]eah, oh yes, yeah, especially if I’m holding something. I’ll
25 just be -- whoops. It’s frustrating, really frustrating not to be able to be under control of
26 your own body.” (Id. at 53.) Plaintiff explained “I’m just nothing that I used to be. I don’t
27
1 even I can’t, I can't explain it, it’s just something where I, I just get totally overwhelmed.
2 I, I, I, you know, the other day, I shake, I twitch, I do – I’m, I’m jerking around. I just, I
3 don’t feel comfortable enough to where I would even put an employer or someone like that
4 in jeopardy of, of me screwing something up[.]” (Id. at 48.) And when he gets
5 overwhelmed, Plaintiff claimed that he “start[s] to shake [he] start[s] to sweat[.] [He] just
6 feel like [. . .] just laying[.]” (Id. at 50.)
7 The ALJ found that he had “considered the testimony by the [Plaintiff ] at the hearing
8 in this matter, that the [Plaintiff] has difficulty concentrating and he experiences pain,
9 migraines and/or trigeminal neuralgia and chronic back pain. However, the objective
10 medical evidence is inconsistent with [his] testimony in that the physical examinations of
11 record reveal primarily benign findings and there is no history of therapy treatment or
12 individual counseling over an extended period of time.” (Id. at 24.)
13 Even though the ALJ found that Plaintiff’s testimony was inconsistent with the
14 objective medical evidence, the ALJ failed to address Plaintiff’s testimony about the
15 intensity, persistence, and limiting effects of his tremors and shaking, which Plaintiff
16 indicated was constant and affected his ability to use his hands and write. The ALJ failing
17 to specifically identify any part of Plaintiff’s testimony that he determined was not credible
18 prevents the Court from conducting a meaningful judicial review. See Smolen, 80 F.3d at
19 1284 (An ALJ “must state specifically which symptom testimony is not credible and what
20 facts in the record lead to that conclusion.”).
21 Although the ALJ stated that “the objective medical evidence is inconsistent with
22 [Plaintiff’s] testimony in that the physical examinations of record reveal primarily benign
23 findings and there is no history of therapy treatment or individual counseling over an
24 extended period of time,” the ALJ failed to provide any reasons for discounting Plaintiff’s
25 testimony as to his tremors and shaking. (See id. at 24.) By not specifically identifying
26 what testimony is not credible and what evidence undermines the Plaintiff’s complaints,
27
1 the ALJ failed to provide clear and convincing reasons supported by evidence in the record
2 and cannot expect the Court to comb the administrative record to find specific conflicts
3 that support his conclusion. See Brown-Hunter, 806 F.3d at 494 (“Indeed, ‘[o]ur decisions
4 make clear that we may not take a general finding—an unspecified conflict between
5 Claimant’s testimony ... and her reports to doctors—and comb the administrative record to
6 find specific conflicts.”).
7 Accordingly, the Court concludes that the ALJ erred in rejecting Plaintiff’s
8 testimony without specifically addressing Plaintiff’s testimony as to his tremors and
9 shaking, as well as for failing to provide clear and convincing reasons for rejecting
10 Plaintiff’s testimony.
11 b. Plaintiff’s Complaints in Medical Record
12 As for Plaintiff’s complaints in medical record regarding his tremors and shaking,
13 the ALJ did not acknowledge or address his complaints. (See ECF No. 9-2 at 23–24.) The
14 ALJ simply ignored the fact that Plaintiff had actually been treated for tremors and shaking,
15 which can reasonably affect Plaintiff’s ability to work and hold things.
16 The record as a whole indicates that Plaintiff made complaints regarding his tremors
17 and shaking. As for Plaintiff’s tremors, Dr. Spier indicated in her October 10, 2017
18 Progress Notes that Plaintiff complained that he had a tremor that day. (ECF No. 9-8 at
19 35, 50, 106.) In her physical, Dr. Spier indicated that Plaintiff had a mild postural tremor
20 but does not interfere with handwriting. (Id. at 38.) On November 26, 2018, Dr. Spier
21 noted in her physical exam that Plaintiff had fine postural tremors. (Id. at 110.) As for the
22 shaking, Plaintiff indicated in the May 3, 2017 Disability Report Appeal that there had
23 been a change in his daily activities due to his physical or mental conditions, which he
24 noted that he is unable to be around people or loud noises because he will start shaking and
25 will have a panic attack, in which he claims to have at least three times a month. (ECF No.
26 9-6 at 20.)
27
1 Since the ALJ’s ignored Plaintiff’s complaints as to his tremors and shaking, the
2 Court remands to give the ALJ an opportunity to so address. As stated, shaking and tremors
3 could affect the ALJ’s findings under Step 5.
4 C. Harmless Error
5 “ALJ errors in social security cases are harmless if they are ‘inconsequential to the
6 ultimate nondisability determination.’” Marsh, 792 F.3d at 1173 (quoting Stout, 454 F.3d
7 at 1055–56); see also Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1162 (9th Cir.
8 2008) (An ALJ’s reliance on erroneous reasons is harmless so long as the “remaining
9 reasoning and ultimate credibility determination were adequately supported by substantial
10 evidence”). “[W]here the magnitude of an ALJ error is more significant, then the degree
11 of certainty of harmlessness must also be heightened before an error can be determined to
12 be harmless.” Marsh, 792 F.3d at 1173.
13 The ALJ generally found that the Plaintiff’s testimony was inconsistent with the
14 objective medical evidence and Plaintiff’s complaints in the record were unsupported by
15 the objective medical evidence, but failed to specifically identify which testimony and
16 complaints that he found not credible and why. As indicated above, this was legal error.
17 See Brown-Hunter, 806 F.3d at 494. The Court cannot find the ALJ’s erroneous rejection
18 of Plaintiff’s testimony and complaints harmless because if they were credited, it would
19 likely be consequential to the ultimate disability determination. See id. (finding that the
20 ALJ’s failure to identify the testimony she found not credible and failure to link that
21 testimony to the particular parts of the record supporting her non-credibility determination
22 was legal error and was not harmless).
23 D. Remand is Required
24 “The rare circumstances that result in a direct award of benefits are not present in
25 this case.” Leon, 880 F.3d at 1047. “When the ALJ denies benefits and the court finds
26 error, the court ordinarily must remand to the agency for further proceedings before
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1 directing an award of benefits.” Id. at 1045 (citing Treichler, 775 F.3d at 1099). The
2 credit-as-true analysis “permits, but does not require, a direct award of benefits on review
3 but only where the [ALJ] has not provided sufficient reasoning for rejecting testimony and
4 there are no outstanding issues on which further proceedings in the administrative court
5 would be useful.” Id. at 1044. Under the three-part rule, the Court first considers “whether
6 the ‘ALJ failed to provide legally sufficient reasons for rejecting evidence, whether
7 claimant testimony or medical opinion.’” Id. at 1045 (quoting Garrison, 759 F.3d at 1019).
8 This step is met for the reasons set forth above.
9 However, at the second step, the Court considers “whether there are ‘outstanding
10 issues that must be resolved before a disability determination can be made’ and whether
11 further administrative proceedings would be useful.’” Id. (quoting Treichler, 775 F.3d at
12 1101). “In evaluating this issue, [the Court] consider[s] whether the record as a whole is
13 free from conflicts, ambiguities, or gaps, whether all factual issues have been resolved, and
14 whether the claimant’s entitlement to benefits is clear under the applicable legal rules.”
15 Treichler, 775 F3d at 1104–05. “Where . . . an ALJ makes a legal error, but the record is
16 uncertain and ambiguous, the proper approach is to remand the case to the agency.” Id. at
17 1105. When, as here, the ALJ’s findings regarding the Plaintiff’s symptom testimony and
18 complaints are inadequate, remand for further findings on credibility is appropriate. See
19 Byrnes v. Shalala, 60 F.3d 639, 642 (9th Cir. 1995).
20 As discussed above, the ALJ failed to properly evaluate Plaintiff’s subjective
21 testimony and complaints in the medical record. The ALJ’s findings are inadequate and
22 further administrative review may remedy the ALJ’s errors, making remand appropriate in
23 this case. See Ghanim, 763 F.3d at 1166; McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir.
24 2011); Byrnes, 60 F.3d at 642. The Court is not going to create reasons that the ALJ did
25 not give or support in his findings, however, the Court does find that further administrative
26 proceedings are necessary to allow the ALJ to do this evaluation under these circumstances.
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1 The Court finds that remand is proper in this case, since not all factual issues have been
2 resolved and it is not clear whether the Plaintiff is entitled to benefits under the applicable
3 legal rules. See Treichler, 775 F3d at 1104–05.
4 E. The Court Declines to Address Plaintiff’s Remaining Argument
5 Having found that remand is warranted, the Court declines to address Plaintiff’s
6 remaining arguments as to whether the ALJ erred in discounting Plaintiff’s Mother’s
7 testimony, determining that the Plaintiff was not disabled despite finding that the Plaintiff
8 could not perform past relevant work, not evaluating Plaintiff’s combined physical and
9 mental impairments, and determining that the Social Security Administration met its
10 burden of proof under Step Five. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012)
11 (“Because we remand the case to the ALJ for the reasons stated, we decline to reach
12 [plaintiff’s] alternative ground for remand.”); see also Wanda v. Saul, No. EDCV 20-0772-
13 RAO, 2021 WL 515616, at *5 (C.D. Cal. Feb. 2021) (“Having found that remand is
14 warranted, the Court declines to address Plaintiff’s remaining issue.”); Kershner v. Saul,
15 No. 2:18-CV-0717-DB, 2020 WL 5366520, at *4 n.5 (E.D. Cal. Sept. 2020) (“Given the
16 ALJ’s error, that correction of the error may alter the entirety of the ALJ’s opinion, and in
17 light of plaintiff’s request that this matter be remanded for further proceedings, the court
18 finds it unnecessary to reach plaintiff’s remaining claims of error.”); Newton v. Colvin, No.
19 2:13–cv–2458–GEB–EFB, 2015 WL 1136477, at *6 n.4 (E.D. Cal. Mar. 2015) (“As the
20 matter must be remanded for further consideration of the medical evidence, the court
21 declines to address plaintiff’s remaining arguments.”); Augustine ex rel. Ramirez v. Astrue,
22 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not address the other
23 claims plaintiff raises, none of which would provide plaintiff with any further relief than
24 granted, and all of which can be addressed on remand.”).
25 ///
26 ///
27
1 || VI. CONCLUSION
2 Based on the above reasoning, Plaintiff's Motion for Summary Judgment (ECF No.
3 || 19) is GRANTED, the Commissioner’s Cross-Motion for Summary Judgment (ECF No.
4 is DENIED, and the case is REMANDED for further proceedings.
5 IT IS SO ORDERED.
6 || Dated: December 6, 2021 p / /
on. Bernard G. Skomal
8 United States Magistrate Judge
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